7:00 p.m. - 8:45 p.m.: Panel 1: "The Rule of Law and the Administrative State"Cemex Auditorium

The rule of law, whatever that term describes, is one of the central concepts in Anglo-American jurisprudence. Does the administrative state, either in its operation or in the legal moves necessary for its validation, undermine or support the rule of law? Does modern governmental administration, and modern conditions of life, require some redefinition of the rule of law? Is there a relationship between the rule of law and the separation of powers, and if so, how does the administrative state affect that relationship? This panel, in short, will explore how the administrative state relates to fundamental jurisprudential principles.

Panelists:David Barron, Harvard Law School Richard Epstein, New York University Law SchoolThe Honorable Brett Kavanaugh, United States Court of Appeals for the District of Columbia CircuitPeter Shane, The Ohio State University Law School

Moderator:The Honorable Carlos Bea, United States Court of Appeals for the Ninth Circuit

The administrative state is often defended as a necessary response to modern conditions that make governance through ordinary legislation virtually impossible. Is the administrative process in fact more efficient than legislation (and what is meant in this context by “efficient”)? Do any benefits from the administrative process come at the expense of other values? If the legislative process is subject to gridlock, is gridlock all bad? If capture or influence by interest groups is a problem, is it likely to be a worse problem in agency or legislative settings?

Does congressional abdication contribute to bureaucratic sclerosis, which makes it difficult to start and maintain businesses? Finally, what role do the Court's doctrines play at the intersection of these questions? Is Chevron deference to agencies good? Does the president's control make the administrative state better or worse? Do the Court's doctrines in Bowsher and Chadha give agencies too much power?

Panelists:David Engstrom, Stanford Law SchoolC. Boyden Gray, Former White House Counsel Lisa Heinzerling, Georgetown University School of LawMichael W. McConnell, Stanford Law School

This panel will address the role of Executive branch officials in making high-level policy decisions, and their relationship to Congress. This is particularly relevant in the context of two recent debates: can the President ignore congressional attempts to strip funding from high-level officials who are not confirmed by the Senate? Is the Obama administration’s use of “czars” constitutional? Moreover, what is the power of the Executive branch to start a war without any authorization from Congress?

Panelists:Mariano-Florentino Cuellar, Stanford Law SchoolJohn Harrison, University of Virginia Law SchoolSandy Levinson, University of Texas Law SchoolJohn Yoo, Berkeley Law School

Moderator:The Honorable Thomas Griffith, United States Court of Appeals for the District of Columbia Circuit

This debate will focus on the constitutionality of the Affordable Care Act. While specific attention will be given to administrative law issues, including the constitutionality of giving out compliance waivers and of medical expert boards, the discussion will be free-ranging and address all constitutional questions of interest.

Debaters:Randy Barnett, Georgetown University School of LawPamela Karlan, Stanford Law School

Moderator:The Honorable Sandra Ikuta, United States Court of Appeals for the Ninth Circuit

Being in Silicon Valley, Stanford is known for its strong focus on intellectual property law and technology more broadly. This panel seeks to ask: what is the relationship between technology and the administrative state? Does technological progress require regulatory guidance? This panel will also consider to what degree development in technology in recent years has been slower than anticipated and whether the administrative state has been an asset or a hindrance to the effective utilization of technology.

Panelists:Richard Epstein, New York University Law SchoolAnthony Falzone, Stanford Center for Internet and SocietyMark Lemley, Stanford Law SchoolPeter Thiel, President, Clarium CapitalTed Ullyot, General Counsel, Facebook

A transcription of Justice John Marshall Harlan's lectures on constitutional law, delivered at Columbian University Law School in 1897 and 1898.

I had a quick look at the lectures, which are over 250 pages long. They look quite interesting and differ significantly from the way a constitutional law class would be taught today -- not just because there is a different caselaw today, but because he is very focused on the framing and history.

Here is the first paragraph of the lectures:

One thing I wish to say to you before beginning with the examination and explanation of the Constitution, is that I must assume that each of you has some time or other in your life read the history of England and the history of the United States. If you have done neither, the sooner you do sothe better. This I must assume in order to complete in the short time of space allotted to me, that you have at least a general knowledge of yourcountry, as well as of the country from which our institutions and laws have been derived.

And another brief excerpt here:

You will find gentlemen across the waters, especially in France, whowill speak contemptuously of our form of government. They say it is amode which cannot last.

We are free. There is security of life, liberty, and property here. It is the only government on the face of the Earth where man and man are equal before the law, and with all that large liberty we are stable and strong. There will be government after government overturned and overturned in England and in France, perhaps, and in Germany and elsewhere, by the passions and combinations of the people, while this government is strong and steadfast, because in our fundamental law we have placed checks upon ourselves. We recognize the fact that we need to be restrained.

As this brief excerpt suggests, the way that a leading Supreme Court justice would have understood the Constitution is quite different than those of today. (Compare Justice Ginsberg recommending to other countries not to copy our document.) Although these notes are lengthy, I may just be too tempted and have to read them to get a better picture than Supreme Court opinions of the time indicate (the notes are more discursive and perhaps are franker) of how the Constitution was understood at the end of the 19th Century.

At Balkinization, Ken Kersch highlights two very interesting articles from the UK:

[T]here is a relevant article in the new London Review of Books (23 February 2012) by Stephen Sedley focusing on a lecture entitled “Judicial and Political Decision-Making – The Uncertain Boundary” delivered this fall at Lincoln’s Inn by the Jonathan Sumption, QC, the newly confirmed appointee to the UK Supreme Court. In this lecture, the soon-to-be Justice Sumption indulges in some U.S.- like cosmic theorizing about the supposed opposition between judges following law vs. judges doing politics. Again, in an idiom that American constitutional theorists will find familiar, Sumption expresses concern for the future of self-government under activist, policymaking courts, when judges substitute their own policy preferences for those of the people’s elected representatives. Sumption references the grand constitutional theory debates taking place in the United States, duly noting the positions of the American originalists, and their opponents.

02/27/2012

On Tuesday, February 28, the Supreme Court will consider a very old federal statute: a provision of the Judiciary Act of 1789 now commonly called the Alien Tort Statute (ATS), codified at 28 U.S.C. 1350 but not material changed in language since its enactment. The ATS provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

In Kiobel v. Royal Dutch Petroleum Co., to be argued on the 28th, the question is whether this statute allows suit against Royal Dutch Petroleum for indirect involvement in human rights abuses by the Nigerian government. Kiobel is being closely watched by business groups and human rights groups, because it is only one of a host of cases pending against multinational corporations for abuses committed by governments of nations in which they operate. (SCOTUSBlog's analysis by Lyle Deniston is here).

Much of the Kiobel argument is likely to be about questions of corporate liability under international law – the immediate question presented is whether corporations (as opposed to individuals or nations) have international responsibility for these abuses. But a more immediate question – and unfortunately one presented only indirectly at best – is what this suit is doing in U.S. court. Kiobel is a suit by Nigerian plaintiffs against a Dutch corporation based on the actions of that corporation’s Nigerian subsidiary in Nigeria. Is it plausible that the First Congress, in enacting the ATS, intended to legislate with respect to parties and conduct so remote from U.S. interests?

The ATS … had the intensely practical goal of addressing a narrow category of tortious wrongs against aliens ... that if left unredressed, threatened the security and international relations of the United States. Specifically, the ATS was designed to address only private violations of the law of nations for which the U.S. had a duty to provide redress and which—if not redressed—would constitute affronts to other nations that could result in diplomatic conflict or war. …

The type of claim that Petitioners allege in this case [Kiobel] — an action against private corporations for allegedly aiding and abetting a foreign government’s violations of the rights of its own citizens and residents within its own territory—involves no international obligation of the United States and thus implicates none of the purposes of the ATS. Indeed, for U.S. courts to presume to adjudicate the legality of the domestic conduct of a foreign sovereign would invite, rather than avert, the international conflict the ATS was enacted to prevent.

The scholarship behind this description of the ATS is, I think, overwhelming. The most recent and comprehensive is this article by Anthony Bellia and Bradford Clark in the University of Chicago Law Review; there’s also this earlier article by Thomas Lee in the Columbia Law Review. And Bellia and Clark have this follow-up essay, specifically addressing the Kiobel case. The short of it is that under the Articles of Confederation the U.S. had gotten into trouble internationally because it wasn’t able to redress injuries to the citizens and interests of other nations which other nations expected it to redress. (The U.S. was expected to redress them because they were wrongs committed by U.S. citizens or in U.S. territory). The Constitution and early statutes took various steps to correct that problem, and the ATS is obviously one of those steps. This purpose has nothing to do with Dutch misconduct in Nigeria. As the brief points out, the likely result of the U.S. trying to regulate that conduct is to annoy the Dutch, the exact opposite of what Congress was trying to do with the ATS.

There is, though, a textual difficulty which I think both the amicus brief and Bellia and Clark's scholarship gloss over. While the specific intent behind the statute may be clear enough, the ATS's text doesn’t support any such limitation: it is comprehensive as to any claim by an alien for torts that violate the law of nations; there's no textual hook to limit it to claims that implicate U.S. international responsibilities. So, can the intent modify the plain text?

That is a difficult question; generally I think I would say no. But here there’s a way to reconcile the two. A longstanding canon of statutory construction says that generally worded statutes aren’t construed to violate international law. This rule is associated with the case Murray v. The Charming Betsy in 1804 (thus it’s sometimes called the “Charming Betsy canon”). But it reaches back even earlier, at least to the 1784 New York case Rutgers v. Waddington, which Alexander Hamilton won on that basis. [See correction below: this discussion wrongly suggests that Professors Clark and Bellia don't mention the Charming Betsy canon.]

As I've argued elsewhere, the U.S. would violate the international law of prescriptive jurisdiction if it applied its tort law to conduct having so little connection with the United States. Generally international law allows nations to regulate actions occurring in or affecting their territory, or committed by their citizens abroad. There are a few other bases for regulation, but none seems relevant here. (For a modern application of a version of the Charming Betsy canon, limiting the overseas reach of the U.S. antitrust laws to conduct having some connection to the U.S, see the Court's 2004 Empagran decision). International law does allow "universal jurisdiction" (meaning any nation may regulate) for especially heinous crimes such as piracy, genocide and perhaps a few others. But there’s no international practice of universal jurisdiction over indirect involvement in human rights abuses as alleged in Kiobel.

Unfortunately, because of the way the case was decided in the lower court, the foremost issue in Kiobel appears to be the broader and more difficult question whether any corporations can be sued under the ATS. That question needs to be approached very differently if a U.S. corporation is involved. But if the Court can think of Kiobel as a suit lacking any material connection to the U.S. (and thus lacking any connection to the purpose of the ATS) it might find a way to start returning the ATS to its original meaning without taking on the broader question of international corporate liability.

CORRECTIONS: Two corrections are needed to the above post (thanks to readers for pointing these out). First, the professors’ brief mentioned in the initial post was co-written by NYU Professor Samuel Estreicher and Jones Day attorney Meir Feder (who appears as co-counsel on the cover), not by Professor Estreicher alone. Apologies to Mr. Feder, an outstanding attorney whom I’ve know for many years – I did not mean to slight his participation.

Second, Professor Clark writes to point out that his article with Professor Bellia in the University of Chicago Law Review, which the post mentions, did rely in part on the “Charming Betsy” canon to construe the Alien Tort Statute. (The original post indicated otherwise). He's correct, and I apologize for overlooking that discussion. Although the article’s principal contentions are that the ATS was intended to reach alien-against-alien suits and that construing the ATS otherwise would violate Article III of the Constitution, Professors Bellia and Clark also say this about Charming Betsy (pp. 529-30):

[A]djudicating tort claims between aliens for acts arising abroad would have risked violating the territorial sovereignty of the nation in which the acts occurred. Had the ATS been at all unclear in this regard, separation of powers concerns almost certainly would have led courts to construe it to avoid infringing the territorial sovereignty of other nations. In the first few decades after ratification, the Supreme Court was careful not to take the lead over the political branches in infringing the rights of foreign nations under the law of nations. Violations of such rights could give other nations just cause for war against the United States. When acts of Congress did not clearly violate the sovereign rights of other nations, the Court construed them to respect those rights. In this way, the Court avoided generating conflicts that Congress had not clearly authorized and ensured that the Court did not usurp Congress’s exclusive power to determine matters of war and peace.

The most famous case in which the Court construed an act of Congress so as not to violate the law of nations was Murray v Schooner Charming Betsy. Congress enacted the Non-Intercourse Act of 1800 during the undeclared hostilities with France. The Act prohibited commercial intercourse between residents of the United States and residents of any French territory. In Charming Betsy, the Court held that this Act did not authorize the seizure of an American built vessel that an American captain sold at a Dutch island to an American-born Danish burgher, who proceeded to carry the vessel for trade to a French island. Writing for the Court, Chief Justice Marshall explained that a federal statute “ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.” The Non-Intercourse Act, he concluded, did not clearly authorize such violations: “If it was intended that any American vessel sold to a neutral should, in the possession of that neutral, be liable to the commercial disabilities imposed on her while she belonged to citizens of the United States, such extraordinary intent ought to have been plainly expressed.” By applying this canon of construction, Marshall ensured that Congress, rather than the Court, would determine whether the United States should risk foreign conflict. Neutral rights were perfect rights, and interference with such rights gave the injured sovereign just cause for war.

Under this canon of construction, unless the ATS clearly authorized federal district courts to hear cases that rested within another nation’s exclusive territorial sovereignty, federal courts would have declined to hear them. At the time, separation of powers concerns led the Court to read acts of Congress to avoid law of nations violations. Given that the goal of the ATS was to avoid US responsibility for such violations, it is unlikely that courts would have read the statute to authorize jurisdiction that even arguably violated the territorial sovereignty of other nations under the law of nations.

This discussion seems right to me. I would add that a suit in the U.S. based on conduct in another nation did not, in the eighteenth-century understanding, necessarily violate that nation’s sovereignty. First, it did not do so if the suit had sufficient connection with the United States (principally, if the defendant was a U.S. citizen – as Bellia and Clark say earlier). Second, it did not do so if the U.S. court applied foreign law to the dispute, so that the U.S. was not prescribing rules of decision for the foreign territory, but only applying rules of decision prescribed by the foreign sovereign. The key principle is the right to prescribe (as the earlier post emphasizes).

Tim Sandefur has responded to my last post on his paper. Since these exchanges can only go on so long, I will keep my reply very brief.

Tim draws a distinction between the expected applications of a provision and the principles that the language of a provision appears to incorporate (something like an original public meaning approach). He believes the former is not binding, but the latter is. In this, Tim is following a common methodology of originalists these days.

Tim does not seem to sure whether he is an originalist. He says that “the great pitfall of originalism is to get into a census of the subjective beliefs of the authors of the Constitution.” He then asks whether originalists believe that “the authors of a legal text can actually be mistaken as to its meaning?”

But as my discussion above suggests, many originalists, including me, do not believe that the expected applications of a provision are binding. And therefore originalists do agree that the authors of a law can be mistaken.

But Tim does not seem to recognize that by adopting an original public meaning approach, one assumes a burden. If one is going to argue that the meaning of the text is what a reasonable interpreter would have regarded as the meaning (and therefore that the framers could have been mistaken about the applications), then one must provide strong evidence of its meaning. Otherwise, there are no constraints on what the text means. It is not enough to show, as Tim possibly does, that the interpretation he offers is a plausible meaning of the Due Process Clause. One must show it is the best interpretation in the sense that it is the one that a reasonable interpreter would have adopted. And I don’t believe that Tim successfuly shows this.

Tim says that he is not a student of originalism. And while I don’t believe that everyone needs to be an expert on originalist methodology, being familiar with the debate can help in constructing arguments.

In conclusion, while I have been critical of Tim’s position, I do want to commend him for a quite interesting paper – one that people would benefit from reading. Unfortunately, it is disagreements on which we tend to focus.

At the Constitutional Convention in Philadelphia on June 1st, 1787, James Wilson first proposed that the executive powers of the United States be rested in a single person. Charles Pinckney seconded the motion, and then, as James Madison reported, “a considerable pause” ensued.

The delegates’ hesitation was hardly surprising. Only recently had they freed themselves from the tyranny of King George III, and they were firmly committed to creating a new government that would not abuse its powers and oppress its citizens. It must have seemed preposterous to replace a hereditary monarch with an elected monarch.

To be sure, the framers invoked important arguments for a unitary executive. While Congress would deliberate, the president would act with decisiveness and dispatch. A single president would bring order and energy to the national government. With the passage of time, however, it has become clear that the founding fathers misjudged the consequences of their choice:

They did not anticipate the extent to which executive power would expand and give us an “imperial presidency” that dominates Congress and that has assumed policy-making responsibilities that were thought to be the province of the legislative branch. They did not predict the role that political parties would come to play and how battles to capture the White House would greatly aggravate partisan conflict. They did not recognize that single presidents would represent party ideology much more than the overall public good. And they misjudged the advantages and disadvantages of single versus multiple decision makers.

Had the framers exercised better foresight, they would have been far less enamored with James Wilson’s proposal for a unitary executive and far more receptive to the alternative proposals for a plural executive that they rejected. Like their counterparts in Europe, they might well have created an executive branch in which power is shared among multiple persons from multiple political parties.

If the presidency is to fulfill the founding fathers’ vision and function more effectively, it needs to be reconceived. This need for constitutional change led me to the proposal for reform that I consider in this book — the replacement of the one-person, one-party, unitary presidency with a two-person, two-party, coalition presidency.

A coalition presidency carries the potential for many important benefits — a balancing of power between the executive and legislative branches, a dampening of partisan conflict in Washington, an executive branch more representative of the entire electorate, real opportunities for third-party candidates to win election, and wiser presidential decision making.

After more than two hundred years with the Constitution’s one-person presidency, it may seem preposterous to suggest a plural executive. But a coalition presidency would be far more faithful to the framers’ view of executive power. They wanted a president with limited authority who would serve as a co-equal with Congress. They also believed that power should be contained by dividing it and requiring it to be shared. A two-person presidency relies on the framers’ structural devices to promote their core values. And by correcting the dysfunction in Washington and making the executive branch operate more effectively, a two-person, bipartisan presidency can be justified even without reference to original intent.

02/26/2012

Dan L. Burk (University of California, Irvine, School of Law) has posted Dynamic Claim Interpretation (INTELLECTUAL PROPERTY AND THE COMMON LAW, Shyam Balganesh, ed., 2012) on SSRN. Here is the abstract:

Patent law hinges on the interpretation of a legal text, on construing the definitional claims that conclude the patent document, demarcating the characteristic features of the invention. Courts routinely construe the claims to determine questions of scope, of infringement, of validity, all of which are assessed in reference to the textually claimed invention. Not surprisingly, this interpretive exercise closely parallels common law interpretation of other legal texts, often encompassing familiar methodologies such as the application of competing canons of construction, reliance on dictionary definitions, and searching the documentary history for clues as to its original meaning. But, despite such parallels, surprisingly little of the vast literature on textual interpretation has been brought to bear on patent claim interpretation. In this chapter, I look to the interpretive principles laid out in William Eskridge’s landmark work Dynamic Statutory Interpretation for guidance in approaching claim construction. In particular, I critique the noted tendency of the United States Court of Appeals for the Federal Circuit to adopt formalist approaches to textual interpretation; as Eskridge noted more than a decade ago, formalism is merely interpretive purpose veiled behind claims of neutrality and determinism. As such, interpretive formalism subordinates legal functionality in order to maintain a façade of inevitability. Courts reviewing patent claims might do better to adopt realist approaches akin to Eskridge’s “dynamic statutory interpretation” in order to effectuate the proper function of claims in the patent system.

02/24/2012

Nathan S. Chapman (Stanford Constitutional Law Center) and Michael McConnell (Stanford Law School) have posted Due Process as Separation of Powers (forthcoming Yale Law Journal) on SSRN. Here is the abstract:

From its conceptual origin in Magna Charta, due process of law has required that government can only deprive persons of rights pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern "substantive due process" have obscured the way that many American lawyers and courts understood due process to limit the legislature from the revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was the court's role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key 20th century cases which have not been fully analyzed under the requirements of due process of law.

This article covers much the same ground as Ryan Williams's paper on substantive due process about which I have previously blogged, and appears to be something of a response to it. I plan to post on the paper when I have finished it. Mr. Williams's paper tenatively moved me towards a substantive due process position. I am interested to see what Chapman and McConnell have to say.

This discussion with Professor Ralph Rossum of Claremont McKenna College explores the jurisprudence of Supreme Court Justice Clarence Thomas. Rossum posits that Justice Thomas practices an “original general meaning” approach that seeks concord among the three major strands of originalist theory. Justice Thomas incorporates both the framers’ original intent and that of the states’ constitutional ratifying conventions, as well as Justice Antonin Scalia’s public meaning methodology. Thus Justice Thomas, rather than standing underneath the stature of Justice Scalia, among others, may have a far richer constitutional hermeneutic than many of his originalist brethren. Rossum also discusses Justice Thomas’ appeals to the natural right teaching of the Declaration of Independence in certain decisions.